No Exceptions for Cannabis

By the production disruptions and safety risks posed by a worker intoxicated or stoned on the job, employers can and should maintain comprehensive written drug and alcohol policy covering testing, prevention, and the handling of suspected on-the-job drug- or alcohol-abuse.

While California's 2018 "Adult Use of Marijuana Act" (AUMA) permits adults 21 years of age or older to possess and use marijuana for recreational purposes, the law does not alter an employer's rights to refuse to permit or accommodate the use of marijuana in the workplace. Health and Safety Code [HSC] section 11362.45(f). Similarly, the Supreme Court of California has ruled that management may deny employment to a job applicant who tests positive for marijuana, even if the use prescribed for a medical condition. See, Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, 927.

Drug and alcohol policies should cover:

• Legal Medications and Illegal Drugs - Written policy should include specific definitions of legal and illegal drugs. While a business cannot discipline an employee for use of over-the-counter or doctor-prescribed medications, policy can and should also specify an employee's duty to inform management of such drugs if their effects pose significant impact on work, ability, job performance, or the safety of the employee or others;
• Company Culture - If management wishes to periodically hold employee functions where alcohol is served (in or outside of the workplace), policy should establish guidelines including boundaries on harassing and other inappropriate or dangerous behavior;
• Testing - Management must correctly balance an employer's rights to test for drugs and alcohol and the workers' constitutional rights to privacy. For example, "random" tests without advance notice are only permitted in very tightly defined circumstances, e.g., transportation personnel whose intoxication would be an immediate threat to public safety;

Policy should thus explain the grounds on which a company supervisor can require such testing, including a "reasonable suspicion to conclude that an employee is in possession, control or is under the influence of alcohol, drugs, marijuana or drug paraphernalia on the job or on Company/customer premises" and that the condition may negatively affect that employee's ability to perform his or her job or threaten the safety of that employee, other workers, or the public;

Reasonable suspicion will be based on observable behavior and appearance of the subject employee, including his or her speech, motor skills, reaction time, orientation, and other factors; and

• Disciplinary Consequences for Violations - Policy should also specify the range of actions possible for violations - including warnings, suspension and termination - with decision in management's discretion. Employers should be aware of potential issues for employees who may have rights to reasonable accommodation under the federal Americans with Disabilities Act and the California Fair Employment and Housing Act, including individuals undergoing treatment for chemical dependency.

See also:

• Banning Weed in the Workplace - California Employers May Maintain Drug- and Alcohol-Free Policies (January 18, 2018)
• High Times in California - How to Rise Above the Haze (April 7, 2017)
• Drugs and Alcohol in the Workplace (March 9, 2011)

For further information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
September 3, 2021